# Petition — Vidal v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0473%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 903 ## Text Supreme Court, U. &/)] FILED FEB 26 1979 MIGHAGL AODAK, JR., CLERK IN THE UNITED STATES SUPREME COURT OCTOBER TERM 1979 wo. €8-6276 li ee ee ee | VINCENT VIDAL, z Petitioner, : : Vv. : PEOPLE OF THE STATE OF NEW YORK, : Respondent. 2 ee > MOTION POR LEAVE TO PROCEED IN PORMA PAUPERIS and PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK STATE SUPREME COURT, APPELLATE DIVI- SION, SECOND DEPARTMENT AND NEW YORK COURT OF APPEALS BERNARD G, EHRLICH CHARLES SUTTON Attorney for petitioner 299 Broadway New york, New york 10007 212-964-8612 SUPREME COURT OF THE UNITED STATES SUPREME COURT OF THE UNITED STATES eee er ee ee te te ee tee ee es: eee: SS ee ee ------ x VINCENT VIDAL, 2 VINCENT VIDAL, t petitioner, : petitioner, : v. P ve : PEOPLE OF THE STATE OF NEW YORK, : PEOPLE OF THE STATE OF NEW YORK, : Respondent. : Respondent. : eee eee ee ee ee eee - = = -X eet ee ee eee tt ee -----x State of New york ) Motion for Leave to ) SS.: Proceed In Forma pauperis | County of Westchester ) Please Take Notice that upon the affidavit of vin- vincent vidal, being duly sworn, deposes and says: cent vidal, sworn to February 25, 1979 and the affidavit of 1. I am the petitioner and I make this affidavit Charles Sutton, sworn to February 25, 1979, the undersigned in support of my motion for leave to proceed in forma pauperis will move this court for leave to proceed in forma pauperis on my petition for a writ of certiorari to the Supreme Court pursuant to Supreme court Rules, Rule 53 and 28 U.S.c. Sec- of the State of New york, Appellate Division, Second Depart- tion 1915 authorizing Charles Sutton, Esq. to represent the ment and to the New york Court of Appeals. petitioner without charge or claim against the united States for legal fees, and granting petitioner such other and fur- 2. I was indicted by two indictments from the ther relief as may be just and proper. Supreme Court of the State of New york, County of Kings, in- dictments number 7824/73 and 7826/73 with alleged sale of Dated: New york, New york February 25, 1979 cocaine and possession of cocaine, upon which judgments of charles Sutton Attorney for petitioner conviction after trial by jury were rendered on January 22, To: Clerk, Supreme court 299 Broadway of the united States New york, New york 10007 1975, sentencing me to a mandatory jail term of fifteen years 212-964-8612 To: New york State to life. 1 have been confined to jail since November 1, 1974. Attorney General EA eee ane nS Sy one tn aa prior to my confinement to jail, I was employed as a longshore- man for over fifteen (15) years. I had never before been arrested or convicted of any crime, 3. I own no assets of any kind. I have no bank accounts, no stock holdings, no real estate and no property of any kind, and no income, except what small amounts of money I might be able to earn while working in jail. I am presently confined at the Greenhaven Correctional Institution of the New York State Department of Correction at Stormville, New york. 4. I was unable to pay either for legal fees or costs of transcripts or other expenses on my appeal to the New york State Supreme Court, Appellate Division, Second Department. As a result thereof, upon the application to that court, I was allowed to appeal in forma pauperis by order of that court dated and filed June 23, 1975, a copy of which is attached hereto. 5. I am unable to pay the costs to proceed in the prosecution of my petition for a writ of certiorari to the New york State Supreme court, Appellate Division and New york Court of Appeals. 6. My attorney Charles Sutton, Esq. has agreed to represent me in this court without a present payment of a legal fee upon the understanding that I would pay him when I am able, which I agree to do, and without any expense to the united States. He has represented me on the trial of these indictments, upon my appeal to the Supreme court of the State of New york, Appellate Division, Second Department, upon my application for leave to reargue the appeal to that court, and upon my application to Hon. Jacob D. Fuchsberg, Associate Judge of the New york Court of Appeals for leave to appeal to that court from the order of the said Appellate Division affirming the judgment of conviction. Te No previous application has been made to this Court for this relief. 8. As shown by my attached petition for a writ of Certiorari, my appeal is meritorious and presents important constitutional questions which the State court has decided in conflict with applicable decisions of this court, (petition, Points I, II ) and in addition, presents an important question of federal law which has not been determined by this Court (petition, points III-Ix ). cree Vetole O. Vincent vidal — Sworn to before me this 25th day of Pebruary, 1979 State of New yor CIS B. McLJONNELD Public, Scarce of New Yor} Qualified in Durchess County Com ey Mas 9 BY // =e SUPREME COURT OF THE UNITED STATES VINCENT VIDAL, 2 petitioner, 2 v. 2 PEOPLE OF THE STATE OF NEW YORK, 2 Respondent. : eee ea aeaaeas hee oe ae o ae @X% State of New york ) ; ») SS.: county of New york ) Charles Sutton, being duly sworn, deposes and says: 1. I am the attorney for the petitioner and I am familiar with the facts herein. 2. I agree to represent the petitioner in proceed- ings in this court and to prosecute the proceedings of the petitioner in this court without present payment of any legal fee by the petitioner and I agree to be paid by the petitioner when he is able to pay me. I agree not to apply to or seek payment from the united States on account of any legal fee in any proceedings in this court on behalf of this petitioner. 3. I am familiar with the Rules of this court. I have not yet applied for admission to become a member of the Bar of this court, although I am able and qualified to do so, and shall do so as promptly as feasible. 4. The petitioner has been confined to jail since on or about November 1, 1974. “charles Sutton Sworn to before me this 25th day of February, 1979 Y’ ar. 7 Fs lee * LZ £4,’ "2 = Lo. Notary Public, State of New york atun No 41-013?" : 1 ttt Term | toe ti er Ee MCT, IN THE UNITED STATES SUPREME COURT OCTOBER TERM 1979 VINCENT VIDAL, petitioner, v. PEOPLE OF THE STATE OF NEW YORK, Respondent. -x -X PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK STATE SUPREME COURT, APPELLATE DIVI- SION, SECOND DEPARTMENT AND NEW YORK COURT OP APPEALS BERNARD G, EHRLICH CHARLES SUTTO iN attorney for petitioner 299 Broadway mew york, New York 10007 212-964-8612 INDEX TO APPENDIX TO PETITION Order of New York Supreme Court App. Div. Second Department entered February 21, 1978 Memorandum Opinion thereto Order of said court entered June 26, 1978 Order of Hon. Jacob D. Fuchsberg, Associate Judge of New york Court of Appeals entered November 27, 1978 united States Constitution Pourth, Pifth, and Sixth Amendments New York Criminal procedure Law Section 450.10 Section 460.70 (1) Section 470.05 Section 470.15 Section 470.20 Section 470.50 (1) Order of Appellate Division entered June 23, 1975 granting in forma pauperis relief Index to petitioner's brief to Appellate Division, points and questions 4a 10a 11a-19A Table of Contents Statement Pursuant to U.S. Supreme Court Rule 23, 28 U.S.C.A. «. « - Statement of the Case and Facts. . ..««-«. POINT I - The indigent petitioner was denied his fundamental right to have his conviction reviewed on arpeal by the Appellate Division “eref 8 @ © @ @ POINT II - The defendant was denied his Constitutional rights to due process of law and to a fair trial by the knowing use by the prosecution of false and perjured testimony . .. «+ « «+ POINT III - The entry by police on December 27, 1973 into the building at 679 - 48th Street and into defendant's apartment to make a warrantless arrest of Rosario Bar- barino was illegal, violated defendant's Constitutional rights and rendered de- fendant's arrest and the subsequent search and seizure of defendant's person and apartment illegal. ....+.«+-+«#+e+e#e-s POINT Iv - The warrantless entry into the building at 679 - 48th Street was for- cible, was without announcement of pur- pose or authority, was illegal and all fruits therefrom must be suppressed. .. . POINT V - The warrantless forcible entry by the police into defendant's apartment with- out announcement of purpose violated de- fendant's Constitutional rights and the arrest of defendant, the search of the defendant's person and of his apartment and the alleged seizures therefrom are illegal and must be suppressed .....+ -: POINT VI - There were no exigent circum- stances to justify the warrantless, forcible entry into the building and into the apartment ...+«+e+eee8 82 @ ie 14 17 25 30 31 32 Table of contents (continued) POINT VII - The warrantless arrest of the defendant was made on pretext and vio- lated defendant's Constitutional rights. . POINT VIII - All evidence allegedly seized by the police following the illegal police entry into the building and into defend- ant’s apartment and the illegal arrest and search of the defendant's person and apartment must be suppressed, the counts of the consolidated indictment based thereon must be dismissed, and the judg- ment of conviction must be reversed. .. POINT IX - The search warrant was issued upon allegations derived from the unlaw- ful entry, unlawful arrest of defendant, and unlawful search and seizure and was invalid, . . . * . . . . * . . . . . . . POINT X - The trial court denied defendant a fair trial and due process of law by aiding and counselling the prosecutor in the prosecution of the consolidated in- @ietment ~.cceceveeeeeeeee @ POINT XI - The trial court expressed opinions on the facts, directed find- ings of fact by the jury, unfairly marshaled the evidence, and denied the defendant a trial by jury and a fair trial . . _ . * . . . . . * 7. . * a POINT XII - The prosecutor on summation violated defendant's right to a fair trial by his improper comments concern- ing defendant's failure to testify and by his improper comments concerning the defendant's failure to produce a witness to refute prosecution testimony. ... - - ii - 33 34 38 40 56 63 Table of contents (continued) POINT XIII - The trial transcript is incomplete in that a portion of the trial was not recorded by the court reporter and the trial court denied defendant's demand to direct the court reporter to record by steno- graphic notes that portion of the trial heard by the jury of two tape recordings between Barbarino and the police undercover. .++++**e*** ee 8% * POINT XIV - The trial court denied the defendant his Sixth Amendment right to a public trial by sealing the courtroom and excluding the public during police cause a the extensive testimony of officer Florio without just nd without any hearing. «+ +++-e*s* ee CONCLUSION - The petition should be granted . 7 . . ° . . . . . . . . . ° . . * 7 . 7 . - iii- 67 70 72 IN THE UNITED STATES SUPREME COURT OCTOBER TERM, 1979 NO. eeeanoaeeeeaeecieae eeeaee @ eae of VINCENT VIDAL, : e petitioner, : v. 2 PEOPLE OF THE STATE OF NEW YORK, : Respondent. : PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK STATE SUPREME COURT, APPELLATE DIVI- SION, SECOND DEPARTMENT AND THE NEW YORK COURT OP _APPEALS TO: The Honorable chief Justice, and the Honorable associate Justices of the Supreme court of the United States: The petitioner, vincent vidal, by Charles Sutton, his attorney, respectfully petitions for a writ of certiorari to the New york State Supreme Court, Appellate Division, Second Department and the New York Court of Appeals upon the grounds set forth below, Statement pursuant to u.S. Supreme court Rule 23, 28 U,S.C,A. 1(a) The decision, opinion and order of the New york Supreme court Appellate Division, Second Department, dated rebruary 21, 1978, was reported at 61 A.D. 2d 825 A copy of the order and opinion of that court dated and en- tered pebruary 21, 1978 is appended at pages la and 2a. A copy of the order dated and entered June 26, 1978 of that court, which denied the petitioner's motion to restore the appeal to the appeal calendar for argument on the ground that the court did not afford the petitioner his fundamental right to appeal to that court since that Court did not have before it 1,500 pages, or almost one-half of the trial transcript, which were omitted from the record on appeal delivered to the Appellate Division by the Supreme Court, Kings County Appeals Bureau, and upon which incomplete record that Court rendered its review on appeal and its decision on appeal was not s reported, and a copy thereof is appended at page 3a. The decision, opinion, and order of Honorable Jacob D. Fuchsberg, Associate Judge of the New york Court of Appeals, dated and entered November 27, 1978 which denied the petitioner leave to appeal to that court from the said Appellate Division orders ig reported unofficially at N.Y.S. 2d and officially at N.Y. 2d » and is appended at page 4a. 1(b) (i) The orders sought to be reviewed are the orders of the said Appellate Division entered February 21, 1978 and June 26, 1978. (ii) The order respecting a rehearing (which was not opposed by the District Attorney) was the said order dated and entered June 26, 1978. The time within which to file this petition is calculated from the date of entry of November 27, 1978 of the said order of New York Court of Appeals Associate Judge Jacob D. Fuchsberg. (iii) The statutory authority believed to confer on this court jurisdiction to review the orders in question by writ of certiorari is 28 U.S.C. Section 1257(3), to wit: *"pinal judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (3) By writ of certiorari, where the validity of a treaty or statute of the united States is drawn in question or where the validity of a State sta- tute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the united States, or where any title, right, privi- lege or immnity is specially set up or claimed under the Constitution, treaties or statutes of, or com mission held or authority exercised under the united States," l(c) The questions presented for review are as follows: (1) Given New York's statutory guarantee to every criminal defendant in all criminal prosecutions of “an absolute and fundamental right to appeal a conviction", and given New york's requirements that a full and complete transcript of the trial be filed with it as constituting the record on appeal on an appeal in forma pauperis, and given New york's requirement that the Appellate Division has the power to review both the facts and the law and to render its review and decision on both grounds, is the petitioner denied his Constitutional rights to due process of law and equal pro- tection of the law upon his appeal to that court in forma pauperis when that Appellate Division renders its decision on the petitioner‘’s criminal appeal without having before it and without reviewing almost 1,500 pages out of a trial transcript of 3,000 pages, being one-half of the trial transcript, on a trial which commenced November 4, 1974 and ended December 4, 1974 and in which the missing trial transcript pages included the testimony by a majority of the witnesses produced at trial and included the majority of the admissions of the evidence presented at trial which was vigorously contested and in which at least thirty appellate points of error were presented in petitioner's brief to that court? (a) Was the petitioner's constitu- tional right to appeal violated by the refusal of the trial court to make a record of the tape recording between the undercover police officer and alleged accomplice P..cario Bar- barino which were played to the jury and as to which no min- utes or reconstruction thereof was made for inclusion in the trial record or in the record on appeal? (2) Were the petitioner's Constitutional rights under the Fourteenth, Pourth and Fifth Amendments vio- lated by the police when they broke into the petitioner's private apartment without a warrant, without announcing their purpose, without exigent circumstances allegedly to arrest a person named Rosario Barbarino who did not reside at petition- er‘'s apartment, whose residence address the police knew to be elsewhere than the petitioner's apartment, without probable cause to believe that the said Rosario Barbarino was then inside the petitioner's apartment, in the face of police evi- dence that the police at that time knew that Rosario Barbarino was not inside the petitioner's apartment, and the police tes- timony that after they entered they did not find Rosario Bar- barino to be in the petitioner's apartment, which forcible entry into petitioner's apartment occurred following the use by police of their drawn guns and police badges to force a tenant of the building who was in the outer lobby to use his key to open the locked inner lobby door for the police and from there, the police proceeded up the stairs to petitioner's apartment, where the police after such entry seized and hand- cuffed petitioner at the vestibule of the apartment, and there- upon entered the petitioner's apartment and searched the same, and allegedly seized items upon which the petitioner was in- dicted and convicted of possession of narcotic drugs and paraphernalia, which evidence was also used to prejudice petitioner in his trial? (3) Were the petitioner's Constitutional rights to due process of law and to a fair trial violated by the knowing elicitation and use by the prosecution from Ros- ario Barbarino, the alleged accomplice of petitioner, that in return for his testimony the District attorney had promised him a jail sentence of eight years to life, when in fact the promise was for life probation, which the District Attorney recommended shortly after the end of this trial, and Rosario Barbarino was sentenced to lifetime probation? (4) Was the petitioner's constitutional rights under the Fifth Amendment violated by the statement by the prosecutor, over objection that "rf for a minute there was any doubt whether this stuff is cocaine --- He could have produced his own chemist"? (5) Was the petitioner's constitutional right to due process of law and a fair trial violated by the trial court's prejudicial conduct including siding with and counselling the prosecution? (6) Was the petitioner's Constitutional rights under the Fifth and Sixth Amendments violated when the trial court charged the petitioner with the crime(s) of con- spiracy and acting in concert which were not charged or alleged in the indictment(s) and allowed the prosecution to introduce inadmissible hearsay thereunder? 1 (a) The constitutional provisions, statutes and Rules of Court are set forth at length and appended at pp. 5a-9a, to wit: U.S. Constitution: Fourth, Pifth and Sixth Amendments (pp. 5a); New York Criminal Procedure Law Sections 450.10; 460.70(1); 470.05; 470.15; 470.20; 470,.50(1) (pp. 5a-9a). Statement of t)l.e Case and Facts The defendant vincent vidal was charged by two separate indictments, 7824/73 and 7826/73, Kings County Sup- reme Court, which were consolidated for trial over objections. Indictment Number 7824/73 contained six Counts. The First count charged defendant with the sale of a controlled substance in the first degree (alleged cocaine) on November 20, 1973, by the Pourth Count with sale of a controlled substance in the third degree (alleged cocaine) on November 8, 1973, The Second and Third counts charged defendant, respectively, with possession with intent to sell, and possession of the alleged cocaine charged in the Pirst count, The Pifth and Sixth Counts charged defendant with possession with intent to sell and possession of the alleged cocaine charged in the Pourth Count, Indictment Number 7826/73 charged defendant by the First Count with sale of cocaine in the First pegree committed on December 27, 1973. The Second and Third counts charged possession with intent to sell and possession, based on the sale count. Counts 4, 5, 6, 7, 8, 9, 10 and 13, charged pos- session of almost every controlled substance allegedly seized in defendant's apartment, to wit, 4 - cocaine (by aggregating small amounts of white powder found in the apartment); 5 - opium; 6 - amphetamine; 7 - methaqualone; 8 - barbiturates; 9 - marijuana (also by aggregation); 10 - “materials suitable for packaging ... narcotics ... or stimlants"; 13 - posses- sion (.22 cal.) revolver; 14 - possession (.38 cal.) revolver; 15 - possession stolen (.38 cal.) revolver. Count 15 was dis- missed on motion, The defendant was convicted after trial by jury on all counts except the one dismissed count, as above. The de- fendant was sentenced on January 22, 1975 on each of two sale counts and two possession counts to a term of 15 years to life in jail, to run concurrently. The schedule of his sen- tences on the consolidated indictments is set forth as follows (all sentences were to run concurrently): consol- idated 7824/73 Indict- Indict- ment ment Counts counts charge Sentence 1 4 Sale cocaine, third de- l yr. to life. gree, November 8, 1973. 2 5 possessing cocaine with l yr. to life, intent to sell. 3 6 possession cocaine, Dismissed, 4 1 Sale cocaine first de- 15 yrs. to life gree, November 20, 1973. 5 2 Possession cocaine with Dismissed, intent to sell. 6 3 possession cocaine, Dismissed, 7826/73 Indict- ment Counts 7 1 Sale cocaine, first de- 15 yrs. to life gree, December 27, 1973. 8 2 Possession cocaine, with Dismissed, intent to sell, December 27, 1973. 9 3 . Possession cocaine, 15 yrs. to life December 27, 1973. 10 4 possession cocaine, 15 yrs. to life December 27, 1973. 11 5 possession opium, 1 year. December 27, 1973. d Consol- idated 7826/73 Indict- Indict- ment ment counts counts 12 6 13 7 14 8 15 9 16 10 17 13 18 14 19 15 Charge Possession, amphetamine, December 27, 1973. Possession, Methaqua- lone, December 27, 1973, Possession barbiturates, December 27, 1973. Possession maijuana, December 27, 1973. Possession materials, December 27, 1973. Possession (.,22 cal.) Revolver, December 27, 1973. Possession (.38 cal.) revolver. Possession (.38 cal.) stolen revolver, December 27, 1973. Sentence l year. l year, l year, Max. 3 years, l year, l year, 1 year, Dismissed, The defendant has been confined to jail since Novem- ber 4, 1974 upon the commencement of the jury trial. The jury verdict was rendered on December 4, 1974, The defendant timely filed his notice of appeal from the judgment of conviction to the Supreme court of the State of New York, Appellate Division, First Department. Thereafter the defendant applied by motion to the Rpellate Division for leave to appeal in forma pauperis. That motion was granted by order entered June 23, 1975, a copy of which is appended at page a-___, which directed that “pursu- ant to statute (CPL 460.70) within the twenty day period pres- cribed therein, the stenographer of the trial court is required to make, certify and file two typewritten transcripts of the stenographic minutes of the proceedings of the hearing, trial, and sentence and the clerk of the trial court shall furnish one such certified transcript to appellant, without charge." On November 2, 1977 the defendant's brief was filed with the Appellate Division without a notice of argument and without a note of issue. Thereafter a calendar was published in the New york Law Journal showing that the case was scheduled for argument for Pebruary 6, 1978. The defendant's counsel was actually on trial in a criminal case from January 3, 1978 to March 8, 1978. As a result the appeal was marked submitted without oral argument, The Appellate Division rendered its decision and order entered on February 21, 1978 affirming the judgment of conviction. Pollowing that order by the Appellate Division en- tered February 21, 1978, defendant's counsel discovered that the Appellate Division had not had a complete transcript of the trial upon which its appellate review was rendered. pur- suant to New York Criminal procedure Law Section 460.70, and the aforesaid order of the Appellate Division entered June 23, 1975, the Kings County Supreme Court Appeals Bureau was required - ll - to furnish the Appellate Division with a complete trial trans- cript which would be part of the record on appeal. The total number of pages of the trial transcript was approximately 3,000 pages. people v. Curro, 25 N.Y. 2d 44 (1969). The trial transcript for pages “1,200 (1,500) to 3,213/1" however was not presented or delivered to the Appellate Division. The trial transcript beginning from page 1 to the end was appar- ently presented in one volume and gave the appearance of com- pleteness. However, the pages “1,200 (1,500) to 3,213/1" in fact were omitted. An investigation by the Appeals Bureau clerk confirmed the fact that almost one-half of the trial transcript had not been before the Appellate Division on the appeal, within the time allowed by statute, a motion for reargument dated march 23, 1978 was duly filed which presented these facts to the Appellate Division, asserting that the de- fendant “be accorded his statutory and constitutional right to have a review on appeal from the judgment herein upon a complete record” as set forth in the affirmation of charles Sutton dated April 27, 1978. The District Attorney did not oppose the motion. Notwithstanding that the District aAttor- ney did not oppose the motion the Appellate Division denied the motion by its order entered June 26, 1978 appended at page The trial transcript which was filed by the said Appeals Bureau with the Appellate Division was deficient to - 12 « the extent of almost 1,500 pages out of a total of 3,000 pages, The trial period missing transcript was from November 18, 1974 to November 29, 1974. The trial commenced November 4, 1974 and continued until December 4, 1974 when the jury rendered its verdict. Those pages which were missing from the Appellate Division record on appeal included the testimony of undercover police officer Florio, police Sergeant Toal, police officer Kennedy and all three of the police chemists, Acevedo, Agatow and Ferrar, whose testimony concerned each of the three counts of sale of alleged cocaine. The competence and the test pro- cedures allegedly employed by each police chemist to “identify” “white powder" as “cocaine” waschallenged and impeached. The trial transcript of their testimony showed that the evidence was insufficient as to each sale count to authorize a guilty verdict. Numerous objections to the introduction of evidence was included in the missing pages. There was no way an appel- late court could review the trial without those 1,500 missing pages. As shown by the copy of the Index to petitioner's brief to the Appellate Division, appended at pp. a... the issues presented were substantial and critical issues of fact and of law which could not be resolved without a review of the trial transcript. POINT I The indigent petitioner was denied his fundamental right to have his conviction re- viewed on appeal by the Appellate Division. New york Criminal procedure Law Section 450.10 grants every defendant “following a judgment sentence and order of a criminal court" a right to appeal. “In New york State, every defendant has an abso- lute and ‘fundamental right’ to appeal a conviction (People v. Montgomery, 24 N.Y. 2d 130, 132, 299 N.Y.S. 2d 156, 159, 247 N.E. 2d 130, 132, supra; ¢ see, also, CPL 450,10). The denial of that right constitutes as much a failure of due process as would the denial of the right to a trial itself, and, where its denial or serious obstruction comes about because of poverty, it constitutes a denial of equal protection as well (Griffin v. Illinois, 351 U.S. 12, 18, 76S. Ct. 585, 100 L.Ed. 891; People v. Montgomery, supra, p. 134, 299 N.Y.S. 2d, p. 161, 247 N.E. 2d p. 133)." People v. Rivera, 39 N.Y. 2d 519, 522 (1976); people v. Mel- ton, 35 N.Y. 2d 327, 329 (1974). In order to give substance to that “absolute and fundamental right to appeal a conviction" o Me People v. Rivera, supra, a stenographic transcript of the trial, absent circumstances not applicable here, is essential in order * for a reviewing court to provide the review of a conviction that a defendant is entitled to receive,* People v. Rivera, supra, "The right to appeal requires a review of the merits upon an appeal” and that requires the reviewing court to review the trial transcript on the merits. People v. Borum, 8 N.Y. 2d 177 (1960). “There can be no doubt that a criminal appellant is entitled to a ‘record of sufficient com pleteness' (cPL 460.70, subd. 3; code crim. proc. Section 485; Mayer v. City of Chicago, 404 U.S, 189, 193-195, 92 Ss. ct. 410, 30 L, Ed. 24 372; people v. pride, 3 N.Y. 2d 545, 549, 170 N.Y.S. 2d 321, 323, 147 N.E, 2d 719, 720." People v. Hall, 32 N.Y, 2d 546, 551 (1973); Draper v. washington, 372 U.S. 487, 497, 499 (1963). Without a complete transcript of the trial testimony, there can be no valid review by the appel- late court. people v, pride, 3 N.Y, 2d 545, 549-550 (1958); people v. Giles, 152 N.y. 136, 139 (1897); People v. Hartley, 34 A.D. 2d 733 (4th Dept. 1970); People v. Schwack, 16 A.D. 2d 879 (4th Dept. 1962); People v. Hines, 57 App. Div. 419 (lst Dept. 1901); people v. williams, 13 A.D. 24 814 (24 Dept. 1961); People v. De Mayo, 2 A.D. 2d 985 (2d Dept. 1956); People v. Eldridge, 34 A.D. 2d 693 (3rd Dept. 1970); People v, cittrola, 210 N.y.S. 21 (App. Div. lst Dept. 1925); People v. Adams, 22 A.D. 2d 892 (2d Dept. 1964). - 15 «- In view of the fact that the indigent petitioner's forma pauperis appeal to the Appellate Division required a complete trial transcript for appellate review, an appellate review based only on approximately one-half of the trial trans- cript denied the petitioner his Constitutional rights to due process of law and equal protection of the law to have a full review of his appeal on the merits as available to all defend- ants. Mayer v. City of Chicago, 404 U.S. 189, 193-195 (1971); Draper v. Washington, 372 U.S. 487, 488-489, 493-500 (1963). POINT I The defendant was denied his Constitutional rights to due process of law and to a fair trial by the knowing use by the prosecution of false and perjured testimony. The prosecution elicited false and perjured testimony by Rosario Barbarino that the promise made to him for his testi- mony by the District Attorney was a jail sentence of a minimum of eight (8) years to life (1743, 1942-43) (12-2-74; 195-199) when, in fact, the promise made was for lifetime probation The false testimony denied the defendant his con- stitutional rights to due process of law and to a fair trial and require that the judgment of conviction must be reversed. Napue v} Illinois, 360 u.S. 264 (1959); Giglio v. united States, 405 U.S. 150 (1972); People v. Savvides, 1 N.y. 2d 554, 557 (1957); people v. Mangi, 10 N.Y. 2d 86 (1961); People v. Zimmerman, 10 N.Y. 2d 430 (1962); People v. york, A.D. 2d » 396 N.Y.S. 2d 956 (4th Dept. 1977). Each alleged sale and possession counts against the de- fendant for the dates November 18, 1975, November 20, 1973 and December 27, 1973 depended essentially upon the testimony of Ros- ario Barbarino. His credibility was an important issue in this case, On the direct, the prosecution asked Barbarino to state the promises which were made to him if he cooperated and eectheiel in this matter (1743). Barbarino testified that he had been pronm- ised a jail sentence of “eight years to life" (1743). “Q. And in return for your testimony in this case have any promises been made to you? --17- “e A. Yes. Q.- What promise was made to you? A. I was promised that if I cooperate and testify in this matter my sentence would be eight to life. Q. Eight years to life? A. Yes . Qe Do you know what minimum sentence you face without such a recommendation? Ae Minimum of fifteen to life." (1743) On cross-examination, the defense questioned Rosario Barbarino as to this promise made to him by the prosecution (1942 1943): “Q. Mr. Barbarino, are you aware, Mr. Barbarino, that the sale of gny quantity of some controlled drugs can result in a life sentence? Mr. Farkas: Objection, your Honor. It is irrelevant. The court: Overruled. A. Yes. Q- Are you charged by indictment with crimes alleging sales of controlled substances under which you can get a life sentence? A. Yes . Q. As a matter of fact, you are charged with a number of them, are you not? A. Yes. Q. And does it weigh on your mind that you could be sen- tenced to any life sentence at all? Ae Yes. Q- And it bothers you greatly? A. Yes. Qe You are afraid of going to jail for a lifetime, are you not? T Mr. Farkas: Objection, your Honor. It is an improper question ‘going to jail for a lifetime’. The Court: Sustained in that form. Q. Are you afraid to be sentenced to life imprisonment? Mr. Farkas: Objection, your Honor. He is already sen- tenced. He is getting sentenced to life imprisonment. The court: I'll permit it. Overruled. A. Yes, I'm scared, Q. And you made a deal by reason of that fear with mr. Parkas, did you not? Ae Yes Q.- Do you know the full extent of the deal that your attorney made with mr. Farkas? Ae NO. Q. But as far as you are concerned, you are getting alleviated from the penalties that you would have had by reason of the indictment facing you, isn't that true? Ae Yes." (1942-43) (Underscoring added). The prosecutor, on summation, falsely declared to the jury (12-2-74; 195-6; 198-199) that Rosario Barbarino “is going to pay for it dearly. He is up against the wall and everybody Knows that. I am not an ostrich. I am not going to hide my head and say he is wonderful. I wanted you to see who he is. (196-7)... Now com(ing) here may be the first de- cent thing he ever did in his life. And even that he did with a sword hanging over his head. He had a motive to lie... you heard the promise that was made to him. He got about seven years off his Brooklyn sentence and he is going to do time, hard time. He spoke to you about a life sentence. That doesn't mean he is going to spend the rest of his life in jail. He is going to do some time and then he will be on parole...” (198-199, 12/2/74) (underscoring added). The facts known to the prosecution at the time of the trial and at the time of the testimony of Rosario Barbarino were that the actual promises made to Rosario Barbarino by the prosecu- tion, by the authorized Assistant npistrict attorneys, were that - 19 - Rosario Barbarino would not be sentenced to any jail term whatevel 5 and that he would be sentenced to lifetime probation : These facts were known to the prosecution since Januafy, 1974, ten (10) months prior to the commencement of this trial, almost eleven (11) months prior to the time when Rosario Barbar in testified on November 19, 1974 in this trial (1741), as shown by the deposition of Henry M. Gargano, Esq., taken on August 4, 1977 and sworn to August 18, 1977. ¢ and the affirmation of Assistant pistrict Attorney arnold Taub, sworn to January 27, 197 Assistant District Attorney Arnold Taub confirmed in hii affirmation dated January 27, 1975 Mets » that Barbarino “surrendered” on December 28, 1973 and that “zymmediately upon his surrender defendant (Barbarino) agreed to cooperate with the police Department by giving information regarding trafficking in drugs. He has contin- ued to do so to date and will continue subsequent to the plea...” A.D.A. Taub also confirmed the life probation plea bar- gain in his said affirmation: “pursuant to Section 65.00(1) (b) and 65.00(3) (a) (ii) of the Penal Law, the People recommend that the above named Gefendant (Barbarino) be sentenced to life probation upon his plea of guilty to criminal possession of a controlled substance in the Third degree, a Class A-III Pelony..." The false testimony seriously prejudiced the defendant in the defense of these serious charges. This witness Barbarino testified that he has lied in his life (1943) and that it did not bother him to lie (1943, 1944). He testified that he was “scared” of being sentenced to life imprisonment (1943), and that he would ‘= 20 - wF do whatever he could to get himself out from under (1943). on the! other hand, a prison sentence of eight (8) years to life, while it is a lesser sentence in terms of a minimum sentence, is none- theless a substantial and heavy prison sentence. The normal reac tion of a juror would be that Barbarino does not have a aia al reason to fabricate his testimony or to tailor his testimony to suit the benefit of the prosecution and curry its favor. The issue of the promise made by the District attorney to Barbarino in exchange for his testimony was presented to the jury as a very important matter at the time that the jury was being selected (439, 464, 465, 580-584). The prosecutor went to great lengths to condition the jurors into accepting Barbarino's testimony at face value notwithstanding the fact that he was tes~ tifying as a result of promises made by the District attorney's office because “he's got a lot to lose" (439). He argued to the jury that Barbarino was testifying not to aid himself, but simply to tell the “facts". (439-442, 464-465, 610, 485-486, 492-493, 532, 534, 537, 566, 573, 580-584, 594-595, 597-598, 619-620, 625- 627, 636-638). The prosecutor made it an important part of the jury selection process to personally assure the jury that Rosari Barbarino would tell them the truth as to what promise was made to Barbarino for his testimony. He conditioned the jurors to accept Barbarino‘s testimony as truthful because Barbarino would be truthful about the promise made to him by the District Attor and about the plea bargain under which he would give his test The prosecutor assured the jury "I'm not hiding anything from o (439), to wits ‘- 21 «- “Mr. Parkas: And now t*d like to ask you about the other side - the co-defendant Rosario Barbarino coming to testify and I*m not hiding anything from you and I'm telling you and every other member or the jury that he was made promises and the judge will tell you after very carefully analyzing the testimony because he's got reasons to lie if that’s what he's going to do; he's qot a lot to lose too. r'm not an ostrich; I'm not going to hide my head, but are you still willing to listen to him despite all of that?" (439) (under- scoring added). The prosecutor assured the prospective jurors that Bar- barino would tell them the truth as to what the promise was: “Mr. Farkas: Now you are going to hear from Rosario Bar- barino. Rosario Barbarino was made certain promises in order to have him turn State's evidence, He will tell you what that promise is. I can't tell you... (464) ... In Return for Rosario Barbarino giving evidence on behalf of the State, he was made certain promises. what frose prom ises were, he'll tell you and he's already been made that promise... I'm also not going into what the promise was but that fact alone, will that be enough for you to dismiss the testimony of Rosario Barbarino at this point? Mr. Sutton: Objection. Tae Court: Sustained. Mr. Farkas: would you be willing to listen to Rosario Barbarino and weigh his testimony together with all the other evidence in this case, “r. Shaw? Mr. Shaw: Yes. (465) .«.. Mr. Parkas: My question to you, sir, that because of the fact that he was made certain promises, would that be enough to reject his testimony? Mr. Zar: I'd have to hear more evidence to corroborate it." (610). The importance of the false testimony in the minds of the jurors, and the weight which they would give to Barbarino's testimony is exemplified by one juror's statement that *"r'd like to hear the facts. r°d like to know what he was promised." (479). This statement may fairly be stated as being the attitude of the other prospective jorors. - 22 « The prosecutor misrepresented to the trial court and defense counsel that Barbarino first became an informant “the day of the supprecsion hearing" (734), when in fact parbarino had first become an informant on December 28, 1973 and in January, 1974, almost eleven (11) months before the first day of the sup- pression hearing as the affidavit of Henry M. Gargano, sworn to August 18, 1977 and the affirmation of Arnold Taub dated January 27, 1975 show The prosecutor indicated that same misrepresentation to the jury that his deal was made just “prior to coming here to testify” (1952); "Q. Prior to coming here to testify, and the so-called deal was offered to you, were you told what effect the deal would have if you lied on the stand? Mr. Sutton: Objection. May we have a sidebar, your Honor? The Court: Sustained. No." (1952) The prosecutor misrepresented to the trial court and defense counsel the true status of Barbarino upon the a oe motion to consolidate the two indictments numbers 7824/73 and 7826/73: “mr. Parkas: Judge, I asked that you decide that for the following reason, I have to know which defendant I am going to trial with. I intend to go with vidal, Russo and Barbar- ino. The second indictment (36)..." The prosecutor stated that he will consent to defendant Russo being severed, "... in which event, we will be on trial with defendant Barbarino and defendant vidal ... on all two irdictments, three sales (80)." The prosecutor misrepresented again to the court and defense counsel that he was putting Barbarino on trial for the charg#s under indictments 7824/73, 7825/73 and 7826/73 (T. 5-6, - 23 - 11/4/74) and again at T. 7, 11/4/74, and again at T. 15, 11/4/74, and again at T. 68, 11/4/74, when he knew all along that Barbarino would not be tried and that Barbarino had been promised a lifetime probation, had made his plea bargain, and that Barbarino was to bd a prosecution witness, Later after the suppression hearing upon the commencement of the trial, the defense moved "to require the People to give me discovery with respect to the prior connection or history or relationship between the defendant Rosario Barbarino and the police. The Court: I don't know what you're talking about. Mr. Sutton: I'm talking very specifically. I respect- fully suggest that Rosario Barbarino was, in one way or another, a police agent.” (722-723). The issue was clearly presented for the prosecutor to state the truth regarding the plea bargain of and promise made to Rosario Barbarino (723). However, the prosecutor chose not to dig- close the true facts, but to conceal the truth, to wit (723): “mr. Farkas: I'm going to state on the record (once), and for all to clear this up. Rosario Barbarino was not in any form of a police agent on November 8, November 20, or December 27, inclusive, He was arrested as a defendant. Now that Rosario Barbarino is agreeing to testify against Vincent vidal, all of this happened subsequent to December 27. He has agreed to testify against vincent vidal, I would say, prior to the motion controverted last week. prior to that, Ir had no conversations with Rosario Bar- barino nor has any police officer, to my knowledge, had any conversations with Rosario Barbarino concerning his testimony at this trial. The court: The application is denied” (723) (Underscor- ing added). The United States Supreme Court, in Miller v. pate, 386 U.S. 1, 7 (1967) held: “more than 30 years ago this Court held that the Four- teenth Amendment cannot tolerate a state criminal convic- tion obtained by the knowing use of false evidence. Mooney - 24 «- ve Holohan, 294 U.S. 103, 79 L. Ed. 791, 55 S. ct. 340, 98 A.L.R. 406. There has been no deviation from that estab- lished principle. Napue v. Illinois, 360 U.S. 264, 3 L.Ed. 2a 1217, 79 S. ct. 1173; pyle v. Kansas, 317 U.S. 213, 87 Le. Ed. 214, 63 S. Ct. 177; cf. Alcorta v. Texas, 355 U.S. 28, 2 L.Ed. 2d 9, 78 S. Ct. 103. There can be no retreat from that principle.” The priraciple of law is well established that a convic- tion obtained by the prosecution through the knowing use of false and perjured testimony cannot be permitted to stand even though the false evidence is not solicited by the prosecution, where no effert was made to correct it after discovery. United States v, Wilkins, 326 F, 2d 135 (2d cir. 1964); United States v. Morrell, 524 FP. 24 550, 554 (24 cir. 1975). Our Court of Appeals, in People v. Savvides, 1 N.Y. 2d 554, S57 (1957): “rt is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter that its subject, and if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth... That the dist- rict attorney's silence was not the result of quile or a desire to prejudice matters little, for its impact was the same, preventing as it did, a trial that in any real sense could be termed fair.” The judgment should be reversed and the indictment dis- missed, POINT TIJ The entry by police on December 27, 1973 into the building at 679-48th Street and into defendant's apartment to make a war- rantless arrest of Rosario Barbarino was illegal,violated defendant's constitutional rights and rendered defendant's arrest and the subsequent search and seizure of defend- ant's person and apartment illegal. At the suppression hearing held on November 4, 1974, _= 25 - police officer George murphy testified that the police entered the building at 679 - 48th Street to go to Apartment 3£ to arrest Barbarino was made on December 27, 1973 at approximately 3:25 p.m} (91, 93: November 4, 1974). It is not disputed that the police had no arrest warrant for anyone. Murphy testified that at that time the police had no search warrant for any premises (145). Police officer Murphy testified that the purpose of the police in entering the building and in entering defendant's apart+ ment was to “..e-arrest Rosario Barbarino and any other occupant" (267). The Court of Appeals in People v, Gallmon, 19 N.Y, 2d 390, 393 (1967) held that “.eethe intent and purpose of the policeman prior to en- try... controls ... the validity of the entry." “Aan officer without an arrest warrant certainly has no more license than an officer with a warrant in seeking entry to effect an arrest. The constitutional safeguard that assures citizens privacy and security of their home unless a judicial officer determines that it must be over- ridden, is applicable not only in case of entry to search for property, but also in cases of entry to arrest a sus- pect. Dorman v. United States, 140 U.S. App. D.c. 313, 435 P.2d 385, 390 (1970)." united States v. phillips, 497 F. 24 1131, 1135 (9th cir. 1974); Whiteley v. Warden, U.S. » 91S. ct. 1031 (1971). CPL Section 140.15(4) authorizes a police officer to enter any premises to effect an arrest only when “he reasonably believes such person to be present". In United States v. phillips, 497 P. 24 1131, 1135 (7th cir. 1974), the federal court of Appeals stated, citing, United States v. Brown, 467 F. 2d 419, 423 (1972) which cited united States v. watson, 307 FP. Supp. 173 (D.C. 1969)} “..eAn officer seeking entry in order to effect an anest cannot accomplish his task if the person he is looking for is not inside. consequentl;s, absent consent, the officer cannot enter by any means, breaking or otherwise, unless he has responsible cause to believe the defendant is within.” 307 F. Supp. at 175. ... An agent must have probable cause to believe that the person he is attempt- ing to arrest, with or without a warrant, is in a parti- cular building at the time in question before that agent can legitimately enter the building by ruse or any other means. To hold otherwise is to grant the agent a license to go from house to house employing ruse entries in vio- lation of the right of privacy of the respective occu- pants, In this case, the agents did not have probable cause to believe that phillips was in the office build- Ing at the time of the raid and therefore the entry and subsequent arrest were invalid and the conviction must be reversed.“ (Underscoring added). Murphy testified that the police had no knowledge that Barbarino was in or at 679 - 48th Street, Brooklyn, or at Apart- ment 3E, when they entered the building (169, 184, 214, 229, 27 Police Officer Murphy testified that no police officers had the apartment 3£, or the building under observation either before or after police officer Florio had allegedly first entered and had allegedly last exited therefrom (168-170). None of the police officers had any knowledge as to who was in that apartment (169, 184, 214, 229, 277). The police on the other hand knew that Rosario Barbarino did not reside in that building (268). murphy testified that the police had “checked” and that apartment 3£ was “listed in the records of Brooklyn Union Gas Company anc oo Edison as belonging to vincent vidal" (288- Further, the police knew that Rosario parbarino resided at 2122- 73rd Street (Plorio: 1115-16, 1511-12; Toal: 2177-78, 2186, 228)- 82, 2431-32; Kennedy; 2463). fad Murphy testified that when the police entered apartmer 3g, that Barbarino was not there and that none of the police saw him in the apartment (96-97, 22°). The suppression court made the finding that -- 27 - “police officer murphy ... spoke to undercover police offi- cer Angelo Florio who told him that he had just purchased cocaine in that apartment ... and that they, at that time, decided to go to the apartment and arrest the perpetrators of the crime..." (285). (Underscoring added). There was no evidence that the police entered to arr- rest “the perpetrators", The testimony of police officer mur- phy was that the police went in to “arrest Rosario Barbarino and any other Occupant of the apartment” (2 e (Underscoring added). The suppression court's own findings show that the police had no reasonable cause to believe that Barbarino would be found in the apartment, to wit (288); “1 find that the officer had probable cause to enter the apartment to arrest the defendant vidal (sic) and the defendant Barbarino who he had ample reason to be- lieve might still be in the apartment in view of the short time that had elapsed from the time that the un dercover agent saw Mr. Barbarino in the apartment" (288). (Underscoring added). The court's finding is clearly speculative and conjec- tural. It is not based on the evidence. It is contrary to the evidence. ‘To rely on conjecture is not due process of law by any definition’. Haley v. Ohio, 332 U.S. 596, 615 (1948). The suppression court's finding that "the police had probable cause to arrest the defendant Vidal...” (288) (Underscoring added) is irrelevant. The Nagra tape recording made by police officer Florida allegedly before, during, and following the alleged “sale of cocaine" between Florio and Rosario Barbarino, allegedly in de- fendant’s apartment showed that Florio told his fellow officers prior to their entry into the building that he did not see the defendant (1571; see also 277). Murphy gave no testimony that the police entered to ar- rest the defendant. The finding that the “police had probable cause to arrest the defendant vidal” is irrelevant to the issue whether the police were authorized to enter the building and to enter Apartment 3£ to “arrest Barbarino and any other occupant* (267). The Supreme Court in whiteley v. Warden, U.S. } 91S. ct. 1031 (1971) held that a warrantless arrest must comply with the same standards as that required to obtain a warrant of arrest. Murphy's testimony that the purpose of the police in en- tering the building and the apartment was to “arrest Rosario Barbarino and any other occupant" (267), (unéerscoring added) was tailored to meet apparent constitutional and statutory obstac! to that entry and was tailored to the facts that the police knew that Barbarino was not in the building (169, 184, 214, 229, 277) and to cover up the fact that that statement of purpose was a pre? text to break into the defendant's apartment and to arrest the de; fendant, not Barbarinos people v. Gallmon, 19 N.Y, 2d 389, 394-39 (1967); and should not be credited. people v. parmiter, A.D 2a » 390 N.Y.S. 2d 651 (2d Dept. 1977). In People v. Nieves, 36 N.Y. 2d 396, 398 (1975) a search warrant which included the authority to search “(a mamed person) and any other persons occupying said prem- ises...” was challenged as invalid. The court of Appeals held that the said description in the warrant did not satisfy Fourth Amendment Standards and was “too general". people v. Nieves, 36 N.Y, 2d 3 400 (1975). Since that description would not satisfy pourth Ame - 29- ment standards when it was included in a search warrant, it also does not satisfy Fourth Amendment standards to authorize the ag or search of “any other persons occupying said premises" without search warrant. Whiteley v. Warden, U.S. eo 92 Ss. Che 103) (1971). POINT Iv The warrantless entry into the building at 679 ~ 48th Street was forcible, was without announcement of purpose or auth- ority, was illegal and all fruits there- from must be suppressed. The trial transcript shows that the lobby door entrance to the apartments in the building was locked, that the police, whd were all in civilian clothes (141), gained entrance to the build- ing at 679 - 48th Street, Brooklyn, by force of arms, in that, with gun(s) drawn (154) and badges displayed, police officer Plo- rio compelled someone who was in the hallway of that building to take out his key and use it to open up the locked lobby door en- trance of the building so that the police would be enabled to, a did, proceed into the building and up to Apartment 3£ (1571-1574) Such forcible entry was illegal. united States v. phillips, 497 497 F. 24 1131 (9th cir. 1974); People v. Salazar, M,2d (N.Y. Co. 1976); People v. Gallmon, 19 N.y, 2d 389, 392 (1967). “An officer without an arrest warrant certainly has no more license than an officer with a warrant in seeking entry to effect an arrest. The constitutional safeguard that assures citizens privacy and security of their home unless a judicial officer determines that it must he over- ridden, is applicable not only in case of entry to search for property, but also in cases of entry to arrest a sus- pect. Dorman v. United States, 140 U.S. App. D.C. 313, 435 F. 2d 385, 390 (1970).” united States v. phillips, 497 F. 2d 1131, 1135 (9th cir. 1974); Whiteley v. Warden, U.S. » 91S. ct. 1031 (1971). - 30 - ve Miller, 357 U.S. 301, 306-314 (1957); People v. Gallmon, 19 N, The police entry into the building was made without announcement of purpose and authority and was illegal and the arrest of the defendant, the search of his person and apartment, and the seizures made by police violated defendant's constitution rights and require the voiding of the arrest and the suppression f all evidence allegedly seized. cpL Section 120.80(4); united Staties 2d 389, 390 (1967); Sabbath v. United States, 391 U.S. 585 (1968); People v. Floyd, 26 N.Y. 2d 558 (1970); people v. Frank, 35 N.Y, 2d 874 (1974); United States v. phillips, 497 F. 2d 1131, 1135 (9 Cir. 1974); Dorman v. United States, 435 F. 2d 385, 390 (D.c. Cir. 1970); People v. Griffin, 22 A.D. 2d 957 (2d Dept. 1964). POINT VY The warrantless forcible entry by the police into defendant's apartment without announce- ment of purpose violated defendant's consti- tutional rights and the arrest of defendant, the search of the defendant's person and of his apartment and the alleged seizures there- from are illegal and must be suppressed, After the police forcibly entered the building, without notice of purpose or authority to the occupants of the building, as aforesaid, they came up to Apartment 3E (150). police officer Murphy testified that police officer Florio persistently pounded on the door of Apartment 3£ at 679 - 48th Street, Brooklyn (150) and yelled out only: “police, Police... (149) ... Open the door ... (150)" The suppression court found that the police knocked “strongly” (285) and oc aad “announced ‘police, police, open the door’ ... and that shortly thereafter the defendant vincent vidal opened the door to the apartment and that he was then told that he Was under arrest; that the police officers placed hand- cuffs on the defendant..." (285). The suppression court did not find that any of the offi+ cers had announced their purpose (284-291), and it could nc have made such a finding in this record. The evidence is undisputed that the police gave no not- ice of purpose to the defendant at Apartment 3E (150), and made no effort to satisfy the statutory requirement of giving notice of their purpose (cpL Section 120.80 (4)). The arrest of the de- fendant was unlawful and the evidence obtained as a result thereof must be suppressed, and defendant's conviction must be reversed and the indictment dismissed. people v. Floyd, 26 N.y. 2d 558 (1970); People v. Mills, 31 A.D. 2d 433, aff'd. 26 N.y. 2d 862 (1970); Miller v. United States, 357 U.S. 301 (1957); People v. Gallmon, 19 N.Y. 2d 389, 390, 395 (1967); People v. Frank, 35 N.Y} 2d 874 (1974); people v. Griffin, 22 A.D. 2d 957 (2d Dept. 1964). POINT yI There were no exigent circumstances to justify the warrantless, forcible entry into the building and into the apartment. The burden of justifying a warrantless forcible entry into a private home is upon the government. United States v. Rosselli, 506 F. 2d 627 (7th cir. 1974). The prosecution did not meet its burden to justify the warrantless forcible entry into the building and into defendant'd apartment. No evidence was presented by the prosecution of any exigent circumstances. The prosecution made no claim of any exi- - 32 - gent circumstances, The prosecution presented no argument of exi gent circumstances. The court made no finding of any exigent cir cumstances (284-291). “The Circuit court for the District of Columbia (in Dor- man v. United States, 140 U.S. App. D.C. 313, 435 F. 2d 385, 390 (1970)) listed six elements that have to be con- sidered in justifying a warrantless entry to make an arr- est: (1) That a grave offense is involved, particularly one that is a crime of violence; (2) That the suspect is reasonably believed to be armed; (3) A clear showing of probable cause to believe that the suspect committed the crime involved; (4) Strong reason to believe that the sus- pect is in the premises being entered; (5) A likelihood that the suspect will escape if not swiftly apprehended; and (6) The circumstance that the entry, though not con- sented, is made peaceably,“ United States v., phillips, 497 F. 2d 1131, 1135 (7th cir. 1974). Under the facts of this case, set forth above, none of the six (6) criteria set down by the federal court to show exi- gent circumstances existed in this case. INT VII The warrantless arrest of the defendant was made on pretext and violated defend- ant's constitutional rights. Under the facts of this case, as set forth above, the true police purpose in forcibly breaking into the building and in forcibly breaking into the defendant's apartment was to arrest the defendant and to conduct a warrantless search of his person and his apartment. as shown above, there were no exigent circum stances. The matter was one plainly requiring only “normal in- vestigative procedures", since defendant was known to the police, who knew where he resided (288-289). The testimony of police officer Murphy shows that after Police officer Florio had knocked forcefully on the apartment do .- 33. - 7 pr - and announced “police, police, open the door” (148-150), that the defendant vidal opened the door (96) and the police immediately seized the defendant (96), “very, very fast" (155), at the doorway! entrance to the apartment (96-97, 154), handcuffed his hands behing his back (97, 154) and forcibly put to the ground there (154). He was then forcibly taken from the entrance doorway, down the hall, around a right turn, and into the kitchen (189, 190) where the pol 7 ice forced the defendant down upon the kitchen floor there (99). Other officers went immediately from the entrance doorway, down through the foyer, down the hallway, past the kitchen, across the living room and into the bedroom (190-191), and searched the apart ment (155-160). There was no testimony whatever that the police asked defendant “Where is Barbarino?", nog that the police alled out for Barbarino. The entry by police was not to arrest Barbarino but to unlawfully search defendant, and his apartment, and to arrest him, See, People v. Jefferson, 43 A.D. 2d 112 (lst Dept. 1973). POINT VIII All evidence allegedly seized by the police following the illegal police entry into the building and into de- fendant's apartment and the illegal arrest and search of the defendant's person and apartment must be suppressed, the counts of the consolidated indict- ment based thereon must be dismissed, and the judgment of conviction must be reversed. counts 4-10 and Counts 13-15 under indictment number 7826/73, which was “consolidated* with indictment number 7824/73, were renumbered by the court (309) to become counts 10-19 (308, - 34 - 684-699) under the consolidated indictment. Those counts charged possession of contraband allegedly seized by the police both from the person of defendant and from his apartment following their il- legal entry and illegal search at the apartment (684-699). Addi- tional evidence, which the police admitted was seized without any warrant, included money alleged to have been found by police in wa kitchen and in the bedroom (179-180, 188-191, 227-229, 679-681), the .38 calibre Smith & Wesson revolver (99, 202, 694, 698) and the small bottle containing white powder (100, 202, 694-696). The .38 calibre revolver was the subject of counts 18 and 19 of the “con- solidated" indictment (679-681), and the “small bottle containing white powder" was the subject of count 10 (696). All of those items must be suppressed, the Counts based thereon must be dismissed, the judgment reversed upon the principles set forth in points II, III, IV, V, and VI. In addition to the foregoing, all of those items must be suppressed, all of the counts based thereon must be dismissed, and the judgment of conviction of the defendant must be reversed upon the principles of unlawful search and seizure. "rt is the rule that ‘a search or seizure carried out on a suspect's premises without a warrant is per_se unreasonable unless the police can show that it falls within one ofa carefully defined set of exceptions based on the presence of exigent circumstances' (Coolidge v. New Hampshire, 403 U.S. 443, 474-475...) It is readily apparent that there were no exigent circumstances in this case." people v. Stadtmore, 52 A.D. 2d 853, 382 N.Y.S. 2d 807, 809 (2d Dept. 1976). (underscoring added). The testimony of police officer murphy shows that after police officer Florio had knocked forcefully on the apartment door and announced “police, Police, open the door" (148-150), that the defendant vidal opened the door (96) and the police immediately ee 38 « seized the defendant (96) “very, very fast* (155), at the doorway entrance to the apartment (96-97, 154), handcuffed his hands behind his back (97, 154) and forcibly put to the ground there (154). He was then forcibly taken from the entrance doorway, down the hall, around a right turn, and into the kitchen (189, 190) where the police forced the defendant down upon the kitchen floor there (99) Other officers went immediately from the entrance doorway, down through the foyer, down the hallway, past the kitchen, across the living room and into the bedroom (190-191). Police “seized” without a warrant (201-2) a “revolver (194-195), “a small container with a spoon attached and a black top containing a white ... powder" (200-202), and U.S. currency (201-202, 179-180, 188-191). Murphy testified that the police conducted a search of the apartment prior to obtaining the search warrant (155-160). Murphy testified that immediately after entering the apartment he started ldoking around the kitchen (157) and he and other officers started looking around the apartment and observing things. (155, 158-161, 207-209, 227-229, 240, 245, 247, 250-258, 259, 261-266). Police opened closet near bathroom (245), top drawer of table in bedroom (240), looked into kitchen cabinet (250-253), among other things. Murphy admitted that he had “ob- served" items which were in his inventory of the search warrant return before the search warrant was obtained, to wit: item 1, p of item 2, and items 16, 19, 20, and 21 (208). The items he “ob- served" before the search warrant was obtained, also included “three tin foils containing alleged cocaine, two white tablets, large bag containing another large bag which contains nineteen - 36 - small plastic bags containing alleged marijuana, one tin foil of alleged marijuana, one marijuana cigarette; also included in this is a small paper bag containing two tin foils of vegetable matter and one manila envelope containing marijuana seeds ... a plastic bag containing a small plastic bag containing alleged cocaine, and a tin foil containing alleged cocaine; cup containing two plastic bags and two tin foils containing a white powder alleged to be cocaine, and one small vial containing a white powder, a plastic bottle containing a white powder. That's what I found on the bottom shelf* (263-264); and in addition, other items allegedly in the kitchen cabinet (265-267), also (112-113). Murphy testified that the police simply went around the apartment making “observations" (155-160). people v. parmiter, __A.D.24_, 390 N.Y.S, 24 651 (24 Dept. 1977). Even if the police had only conducted an “observation” search, it would nonethe- less be a warrantless and illegal search. people v. Howard, 395 N.Y.S. 24 385 (N.Y. Co. 1977); Congold v. united States, 367 F.2d l; Hernandez v. United States, 353 F. 2d 624; United States v. Bay~ ker, 514 Pp. 24 208 (D.C. Cir. 1975). The record shows that the police had no information at all that there were any drugs, or other contraband at the apart- ment prior to entering illegally and prior to making an actual ru maging search which they did, that the police had no probable cau to conduct any search, and that the search and seizure was unlawf People v. Williams, 37 N.Y. 2@ 206 (1975); People v. Clements, 37 N.Y. 2¢ 675, 678-679, 683 (1975); Chimel v. California, 395 U.S. 752 (1969). even if there had been probable cause to search, it would never,of itself,justify a warrantless search or seizure. 2 Sipe “ete. ¥- d. te ee police chemist was found by the trial as a matter of law “was an expert in his field of chemistry and drug analysis* (238). The trial court thereupon instructed the jury that *The opinion stared hog these heer ane be from the witnees stand wz icula: These statements directed the jury to make those findings notwithstanding that the trial evidence was con trary thereto, viz: Acevedo, on cross-examination as to Counts 1, 2 and 3, testified: Do you have an independent recollec- ton "with respect to People's Exhibit 1 as g any tests whatever on this white ph st A. No.* (2832). + Agatow testified that he had made no notes (2648) ana ‘that he had no recollection of conducting any tests on m6, as to nae 7, 8 and 9 (2712); Catalano testified | . pation as to Px-20, Counts 10-15, that he had omens recollection of having conducted any tests on y | alleged under Counts 10-15 (2990). Ferrar testified on cross-examination that he made no notes whatever of any alleged analysis of PxX-2, as to Counts 4, 5 and 6 (3165, 3154-3155). He also testified that his was a *re- analysis", and that he did not know what was originally in the evidence envelope (3145). The trial court, having so declared his opinion, instructed the jury by an example not in the case, that they could reject the "expert's opinion.... for example if you learn that a chemist was bribed to make a false report* (238). The trial court effectively directed the jurors to accept his declaration of the *testimony* and "expertise" of the police Chemists even though he stated that “his testimony is en- titled to such as you find the expert's qualifications in his field warrant (238-239) since the trial court had previously ruled as a matter of law that “In this case the Court found as a matter of law that each of the chemists was an expert in his field of chemistry and drug analysis* (238). The trial court directed the jury to find as a fact that the defendant - on each of the possession counts - pos- sessed the drug unlawfully by his declaration as follows: “In this case you will note that there was no evidence that this defendant was entitled to possess any of the controlled sub- stances involved in this case as a physician, patient, or otherwise" (240). - 6] « The trial court, as to Counts 4, 5 and 6, and as to Counts 7, 8 and 9, directed the jury to find as a fact that the substance was cocaine and that it weighed in excess of one ounce, to wit: “Now, you may recall the chemist Ferrar testified with respect to the November 20th transaction that he weighed the item which he found to be cocaine and that it weighed one and three quarter ounces and two grains. And you may further recall that Igor Agatow in testifying with respect to the substance which he examined also weighed it and that he found that it weighed one pound and one and three Quarter ounces, plus four grains. Therefore, before the defendant could be convicted of either the sale relating to the -- the alleged sale relating to November 20th or the alleged sale relating to December 27th, in addition to the elements previously described, the People must have established that the cocaine was part of a mixture which weighed at least one Ounce or more and that some part of it was cocaine..... It is sufficient that the aggre gate weight of the substance was at least one ounce or more and contained some quantity of cocaine" (245-246). (Underscoring added). The trial court also directed the jury to find as a fact that the items composing the possession counts under Counts 10 through 18 were all found in defendant's apartment (247): "Now, that therefore brings us to the remain- ing counts in the indictment, counts ten through eighteen. Each of those counts relates to what occurred on Decemper 27th in the apaxtment atter the police came in and atter cetenaant Viaal was Originally -- was arrested.” (247). (Underscor- ing added). - 62 «~ The trial court directed the jury to find as a fact that the item at issue in Count 15 was marijuana, and that it was found in defendant's apartment (251) and that the item at issue in Count 10 was cocaine and it too was found in defendant's apartment (251), and that the cocaine so found weighed one and five eighth ounces plus nineteen grains (251): "And as you may recall that Thomas Catalano testified with respect to the marijuana alleg- edly found in the apartment, that he weighed it, and that it totalled ten and one-eighth Ounces and eighteen grains. And while we are on that score, Catalano, you may recall, testified that he weighed the alleged cocaine found in the apartment and that the total weight was one and five-eighths ovnces plus nineteen grains" (251). The defense counsel duly excepted to the foregoing charges (261, 264-274). The trial court refused to charge further (261-274). Point XII The prosecutor on summation vio- lated defendant's right to a fair t£xial by his improper comments concerning defendant's failure to testify and by his improper com ments concerning the defendant's failure to produc? a witness to refute prosecution testimony. One of the most vigorously contested issues was ie Ms whether the white powcer offereu into evidence py the prose- cution was cocaine. ‘There were ten (10) counts in the con- solidated indictments which charged sale or possession of "cocaine", There were four (4) different alleged police chem ists who gave testimony on that issue: Aceviao, as to Counts 1, 2 and 3; Ferrar, as to Counts 4, 5 and 6; Agatow, as to Counts 7, 8 and 9; and Catalano, as to Count 10, The defense conducted a cross-ecxainination which impeached each one of the chemists on that issue. On summation the prosecutor improperly commented concerning the failure of the defendant to produce a chemist witness as follows:, “Mr. Farkas: oo. YOu also learned a lot about chemistry and when you leave here you will probably be able to tell your neighbors how to analyze crugs. sut that isn't what this case is about either. secause if for a minute Mr. Sutton or Mr. Vidal--- Mr. Sutton: Objection. One minute. The Court: Overruled, Mr. Sutton: Your Honor--- The Court: Overruled, I don't want any speeches. Sit down. Mr. Parkas: If for a minute there was any doubt whether this stuff is cocaine--- Mr. Sutton: Objection, The Court: Overruled. Mr. Parkas: He could have produced his own chemist. Mr. Sutton: Objection. The Court: With respect to that a defend ant doesn't have to call any witnesses. Of course he can, In this case some witnesses were called py the defense, put members of the jury, the defense is under no obligation to pro duce orqll any witnesses, if that's what he chooses to do. Anu the People must nevertheless establish the guilt of the defendant beyond a reasonable dounpt. Proceed.” Mr. Sutton: Your Honor, I respectfully request a further anstruction to the jury. The Court: Reguest is denied, Mr. Sutton: May I speak further? The Court: No." (190-191). The trial court's instruction to the jury was made belatedly and only after repeated objections by the defense and was inadequate to cure the wrong committed by the prose- cutor (190-191). The trial court increased the prejudice to the defendant by the words he used, namely, that the de- fendant'could produce witnesses and did produce some wit- nesses’, but that the defense need not produce any witnesses "if that's what it chooses to do." The trial court effect- ively shifted to defendant the burden to disprove the prose- cution evidence if the defendant could, The prosecutor even after the objections and afore- said ruling by the trial court repeated his improper com ments on defendant's failure to testify: "Mr. Farkas: eee I can't tell you what happened with Vincent Vidal, but Rosario Bar- barino I was avle to prowuce to you (196).... There is nothing at ali that came from any item of evidence other than mere accusations and distortions from the defendant that in any way disprove any of this (203) .... And there is unchallenged evidence as to what this stuff is (205). (Underscoring auded), The right to appellate review as to the latter comments is preserved, notwithstanding that defense did not specifically object thereto since the right involved is a fundamental constitutional right. People v, Patterson, 39 The prosecutor's comments were improper and require a reversal of the judgment. People v, Mirenda, 23 N.Y. 2d 439, 457, 297 N.Y.S. 2d 532, 537 (1969). It cannot be said to be harmless beyond a reasonable doubt. People v, Crimmins, 36 N.Y. 2d 230, 367 N.Y.S. 2d 213 (1976). Point XIII_ The trial transcript is incom plete in that a portion of the trial was not recorded by the court reporter and the trial court denied defendant's demand to direct the court reporter to record by stenographic notes that portion of the trial heard by the jury of two tape record- ings between Barbarino and the police undercover, The alleged tape recording of a telephone conver- sation between Barbarino and the police undercover allegedly on December 26, 1973 was critical, highly prejudicial, and utterly illegal hearsay evidence against the defendant. The defendant was not present and was not a party thereto. It was an important basis upon which the absence of defendant Vidal from the alleged “sale" by Barbarino to the police undercover was “explained* and was highly prejudicial to the defendant. The absence of any stenographic minutes and of a transcript of the illegal hearsay testimony by the tape re- cording, which was heard by the jury, and upon which the jury relied to render its verdict, was not available to the Appel- late Division for review. There was also no stenographic notes made and no transcripts were prepared of another tape recording of the illegal hearsay alleged conversation between Barbarino and the police undercover allegedly on December 27, 1973, which -~ 67 - allegedly recorded the “sale” transaction between Barbarino and the police undercover, which was the subject matter of Counts 7, 8 and 9 (1051-1052). This tape recording was played to the jury and was highly prejudicial to the defendant, and utterly illegal hearsay. In each instance, the defense counsel duly demanded that the tape recordings which were played to the jury, be - stenographically recorded and made part of the written record of the trial (989-990, 1051-1052). The trial court refused these demands in each instance (989-990; 1051-1052). The trial transcript is incomplete. This Court in People v. Giles, 152 N.¥. 136, 139 (1897) held that “the right to review upon the facts neces- sarily contemplates the preservation of the evidence.* This Court in People v. Pride, 3 N.Y. 2d 545, 549, 170 N.Y.S. 24 321, 323 (1958) held that: “Our State has always regarded the right to appellate review in criminal matters an inte- ral part of our judicial system and treated t as such. .... It has been the consistent policy of our Courts to preserve and promote that right as an effective, if imperfect, safeguard against impropriety or error in the trial of causes, This policy has been particularly manifest on a number of occasions where the failure to provide sufficiently com prehensive reports of the proceedings at the initial stage of litigation threatened to ren- der nugatory the right to appeal (cases cited), In the instances cited the lower courts had failed to make and preserve an adequate record of the proceedings at the trial level. vuUnequi- vocally and with emphasis on the importance and fundamental nature of the right to appellate review, the courts on each occasion held that the making of sych a record and its availabil- ity to the defeftdant-appellant were absolute requisites and concomitants of the right to review....” This Court in People v, Hall, 32 N.Y. 2d 546, 551, 347 N.Y.S. 2d 16, 20 (1973) stated that "There can be no doubt that a criminal appel- lant is entitlea to a ‘record of sufficient com pleteness’ (CPL 460.70, subd. 3; Code Crim. Pro. Section 485; Mayer v, City of Chicago, 404 U.S. 189, 193-195, 92 Ss. ct. 4l1o, 30 L. Ed. 2a 372; People v. Pride, 3 N.Y. 2d 545, 549, 170 N.Y.S. 2d 321, 323, 147 N.E. 2d 719, 720." The defendant has been denied his constitutional and statutory right to due process of law and to a fair and complete appellate review of the entire proceedings. People Vv. Adams, 22 A.D. 2d 892, 255 N.Y.S. 2d 339 (2d Dept. 1964). The foregoing defect is in addition to the fact that the Appellate Division did not have before it on review the transcript of the trial which had been made. As hereto- fore noted, in the letter to this Court dated July 26, 1978, the record before the Appellate Division was incomplete in that some 1,500 pages of trial transcript were not forwarded by the appeals bureau to the Appellate Division. The defend ant‘'s right to have the Appellate Division review the appeal On the merits, which could only be accomplished on the full transcript and record at trial, was denied. People v, Siall, 32 N.Y. 2d 546, 551 (1973); People v. Borum, 8 N.Y. 2d 177 (1960). Point XIV The trial court denied the defendant his Sixth Anend- ment right to a public trial by sealing the courtroom and excluding the public during the extensive testimony of police officer Florio with- out just cause and without any hearing. The trial court, with no more than the bare appli- cation by the prosecutor and a brief conclusory recital by the prosecutor of the necessity for the relief, without any hearing, and over the objection of the defense, sealed the courtroom and excluded the public during the testimony of a principal witness, Police Officer Florio who had allegedly acted as a police undercover (732-733): “Mr. Parkas: eeeee There is an application that 1'm making at this time out of the pres- ence of the jury and that is that since my first officer will be Police Officer Florio, I ask that the courtroom be sealed. The officer is an undercover police officer and there is seve- ral case law on the matter, He is active in investigations open at this time. He would work and does, in fact, work with confidential informants whose identity would be uncovered if @ 70 « his identity is known and, therefore, I ask that the courtroom be closed, sealed under the rule of People versus Hinton, I don't have the cita- tion but I can get it, The Court: I'm familiar with t*» case. Do you wish to be heard? Mr. Sutton: Yes, I do, I respectfully ob- ject, Your Honor, and 1 state to Your Honor that the clearing of the courtroom and the absence of the people in the courtroom would end up as a signal to the jury that something is amiss and that the prejudice or the absence of the people in the courtroom would be reflected against the defendant. Additionally, I believe and I most respectfully urge to the Court that the defend ant is entitled to a public trial in this parti- cular instance ana there is no valid reason why this police officer should not testify in open court if he's going to testify at all. The Court: The objection is overruled. The application is granted, You have an exception.* The sealing of the courtroom and the denial of a public trial to the defendant, denied defendant his consti- tutional rights to a public trial and to cu process of law. People v. Hinton, 31 N.Y, 2d 71, 334 N.Y.S. 2d 885 (1972); People v. Morales, 53 A.D. 2d 517, 383 N.Y.S. 24 620 (lst Dept. 1976); People v, Boyd, 59 A.D. 2d 558, 397 N.Y.S. 2d 150 (2d Dept. 1977). - 71 « Dated: conclusion The petition should be granted. February 25, 1979 si, Sac ma F ‘ en ———_ Sa 2 ( « nard Coe “Charles Sutton Attorney for petitioner 299 Broadway New York, New York 10007 212-964-8612 - 72 - APPENDIX At a Term of the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, held in Kings County on February 21, 1978 HON. JAMES D, HOPKINS, Justice Presiding HON, JOSEPH A, SUOZZI, HON, SAMUEL RABIN, HON, J, IRWIN SHAPIRO, Associate Justices The People of the State of New York, ‘ Respondent, ~ Order on Appeal from Judgment of Conviction Vincent Vidal, Appellant ig In the above entitled action, the above named Vincent Vidal, defendant in this action, having appealed to this court from a judgment of the Supreme Coun, Kings County, rendered January 22, 1975, convicting him inter alia of various narcotics offenses, upon a jury verdict, and imposing sentence; ~ and the said appeal having been submitted by Charles Sutton, Esq., of counsel for the appellant ,and submitted by Laurie Stein Hershey . Esq. of counsel for the respondent , and duc deliberation having been had thereon, and upon this court's opinion & decision slip heretofore filed and made a part hercof, it is: ORDERED that the judgment appealed from is hereby modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the third degree (count two of the consolidated indictment), and the sentence imposed thereon, and the said count is dismissed; and, as so modified, the judgment is hereby unanimously affirmed, IRVING N. SELKIN Clerk of the Appeliate Division \ B/ms AD2d ; S - February 6, 1978 2535 K/77 The People, ete., respondent, Ve Vincent Vidal, appellant, Charles Sutton, New York, N.Y., for appellant. Eupene Gold, District Attorney, brooklyn, N.Y. (iaurie Stein Hershey of counsel), tor respondent, Appeal by defendant from a judgment of the Supreme agg Kings County ( KREINDLER, Jed, rendered January 9 } 9 convicting hii inter alia of various narcotics offenses, upon a jury verdict, and imposing sentence, . Judgment modified, on the law, by reversing, the conviction of criminal possession of a controlled substance in the third deycee ( count two of the consolidated indictment ), and the sentence imposed thereon, and the said count is dismissed, As so modified, judgment affirmed, The second count of the consolidated indictment is a lesser included offense tof the tirst count thereof, The evidence docs not support a finding of possession, as alleged in the second count, independent of the sule, us alleged in the first count. The other contentions raised by defendant have been ‘cousiderced and found to be without werit, . , q-* HOVKINS, J.P., SUOZZ1, RABIN and SHAPIRO, JJ,, concur. February 21, 1978 PEOPLE v VIDAL, VINCENT 2535 E/77 -2a- #2290 8 At a Term of the Appellate Division of the Supreme Court of the State of New York. Second Judicial Department, held i Kings County on June 26 . ‘ 7 HON JAMES D. HOPAINS, Justice Presiding tate of New Bork HON, JOSEPH A, SU0Z221 Court of » Associate Justices 3 mae maz | S ere Pee ee DD phe x oO o men BEFORE HON, JACOB Dd FUCHSBERG, Associate Judge ee ee ee) e2eaee af es ‘ ™ ee, . Respondent, | = THE PEOPLE OF THE STATE OF NEW YORK = org@r or ae ’ CERTIFICATE against DENYING neent Vidal vs y LEAVF Appellant. VINCENT VIDAL ee ee 4 In the above entitled cause, the appellant having moved Sun I, JACOB D. FUCHSBERG, Associate Judge of the Court of Appeals of the State of N (1) for reargiment of the appeal from a judgment nf the preme York, do hereby certify that, upon application timely made by tl icate pursuant to CPI, cw « above-named appellant for a certif- 160.20 and upon the record and proceedings herein,® there is no ¢ uestion of 22, 1975, which was modified ‘ , ' Court, Kings County, rendered January ’ ; law presented which oucht to be reviews d by the Court of Appeals and permission to by denied appeal is here. ” t by order of this court dated February 21, 1978, and (2) to restore the appeal to the calendar for oral argument; Dated at Albany ,New York Now, upon the papers filed in support of the motion and there November 271478 being no papers filed in opposition thereto; upon the papers on which the appeal was determined; and the motion having been duly submitted and due deliberation having been had thereon, it is ae Dies rte UGS ORDERED that the said motion is hereby denied, Associate Judge Mater: § pRYJNG N. SELKIN Clerk of Appellate Division Order, App. Div., 2nd Dept dated February 21, 1978 modifying judgment of Supreme Kings County rendered 1D January 22, 1975 escription of Order: 3a ESSE The Constitutional Provisions involved in this case are: (a) Fifth Amendment: “No Person shall he held ' answer for a capital, or otherwise infamous crime, unless on a Presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia. when in actual service in time of War or public danger: . . . nor shall he be compelled in any criminal Case to be a witness against himself. nor be deprived of life, liberty or Property, without due process of law: »»."" ULS.C.A. Const. Amend. 5. (b) Sixth Amendment: “In ail criminal Prosecutions, the accused shall enjoy the right. . . to be informed of the mature and cause of the accusation; to be confronted with the witnesses against him; ... and to have the assistance of Counsel for his defense."” U.S.C.A. Const. Amend. 6. (c) Fourth Amendment: “The right of the people to be secure in their Persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, Supported by oath or affirmation, and Particularly describing the place to be searched, and the persons or things to be seized.” New York Criminal Procedure Law ; 1lA McKinney's , Part 2 § 450.10. Appeal by defendant to intermediate appellate court; in what cases authorized as of right An appeal to an intermediate appellate court may be taken as of right by the defendant from the following judgment, sentence and order of a criminal court: 1. A judgment other than one including a sentence of death ; 2. A sentence other than one of death, as prescribed in sub- division one of section 450.30; 3. An order, entered pursuant to section 440.40, setting aside 4 sentence other than one of death, upon motion of the People. L.1970, ©. 996, § 1; amended 1.1971, ¢. 671, §1; 1.1971, ¢. 788, $3, all eff. Sept. 1, 1971. Page 351 70 Appeal; how perfected H Teas as provided in subdivision two, the mode of and time for perfecting an appeal which has been taken to an intermediate appellate court from a judgment, sentence or order of & criminal court are deter- mined by rules of the appellate division of the department in which such appellate court is located. Among the matters to he determined by such court rules are the times when the appeal must be noticed for and brought to argument, the content and torm of the records and hriets to be served and filed, and the time when such records and briefs must served and filed. "wane an appeal is taken by a defendant pursuant to section 150.10, two transeripts shall be prepared and settled, one of which shall be tiled with the criminal eourt by the court reporter, except that where the de- fendant is granted permission to proveed na & poor person ee late court, the court reporter shall promptly make and file with ¢ New York Criminal Procedure Law § 470.05 Determination of appeals; general criteria 1. An appellate court must determine an appeal without re. gard to technical errors or defects which do not affect the sub- stantial rights of the parties. 2. For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or pro- ceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruc. tion or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an “exception” but is sufficient if the party made his position with respect to the ruling or instruction known to the court. In addition, a party who without success has either ex- presasly or impliedly sought or requested a particular ruling or in- struction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct according- ly sufficiently to raise a question of law with respect to such dis- position or failure regardless of whether any actual protest there- to was registered, L..1970, ¢. 996, § 1, eff. Sept. 1, 1971. Paves 142,443 § 470.15 Determination of appeals by intermediate appel- late courts; scope of review 1. Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermedi- ate appellate court may Consider and determine any question of law or issue of fact invols ‘ng error or defect in the criminal court Proceedings which may have adversely affected the appellant. 2. Upon such an appeal, the intermediate appellate court must either affirm or reverse or modify the criminal! court judgment, sentence or order. The ways in which it may modify a judgment include, but are not limited to, the following: (a) Upon a determination that the trial evidence adduced in support of a verdict is not legally sufficient to establish the defendant's guilt of an offense of which he was con- vieted but is legally sufficient to establish his guilt of a lesser included offense, the court may modify the judgment by changing it to one of conviction for the lesser offense; (b) Upon a determination that the trial evidence is not legally sufficient to establish the defendant's guilt of all the (c) Upon a determination that a sentence imposed upon & valid conviction is illegal or unduly harsh or severe, the court may modify the Judgment by reversing it with respect to the sentence and by otherwise affirming it. 3. A reversal or & modification of a judgment, sentence or order must be hased upon a tletermination made: (a) Upon the law; or (b) Upon t © facta: or (e) As a matter of discretion in the interest of justice; or (d) Upen any two or all three of the bases specified in paragraphs (a), (b) and (¢), Supplement Page 94 ya 577 a es ll New York Criminal Procedure Law Section 470.15 (cntd) 4. The kinds of determinations of reversal or modification deemed to be upon the law include, but are not limited to, the fol. lowing: (a) That a ruling or instruction of the court, duly pro. tested by the defendant, as prescribed in subdivision two of section 470.05, at a trial resulting in a judgment, deprived the defendant of a fair trial; (b) That evidence adduced at a trial resulting in a judg- ment was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted; (c) That a sentence was unauthorized, illegally imposed or otherwise invalid as a matter of law. 5. The kinds of determinations of reversal or modification deemed to be on the facts include, but are not limited to, a de- termination that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence. 6. The kinds of determinations of reversal or modification deemed to be made as a matter of discretion in the interest of justice include, but are not limited to, the following: (a) That an error or defect occurring at a trial resulting in a judgment, which error or defect was not duly protested at trial as prescribed in subdivision two of section 470.05 80 as to present a question of law, deprived the defendant of a fair trial; (b) That a sentence, though legal, was unduly harsh or severe, L..1970, c. 996, § 1, eff. Sept. 1, 1971. Page 578 Ja New York Criminal Procedure: Law § 470.20 — bictermination ot appeals by lntermediate appet- late courts; corrective action upon reversal or malification Upon reversing or modifying a judgment, sentence or order of a criminal court, an intermediate appellate court must take or direct such corrective action as is necessary and appropriate both to rectify any injustice to the appellant resulting from the error or defect which is the subject of the reversal or modifica- tion and to protect the rights of the respondent, The particular corrective action to be taken or directed is governed in part by the following rules: 1. Upon a reversal of a judgment after trial for error or de- fect which resulted in prejudice to the defendant or deprived him of a fair trial, the court must, whether such reversal be on the law or as a matter of discretion in the interest of justice, order a new trial of the accusatory instrument and remit the case to the criminal court for such action. 2. Upon a reversal of a judgment after trial for legal insuffi- ciency of trial evidence, the court must dismiss the accusatory instrumert, 3. Upon a modification of a judgment after trial for legal in- sufficiency of trial evidence with respect to one or more but not all of the offenses of which the defendant was convicted, the court must dismiss the count or counts of the accusatory instru- ment determined to be legally unsupported and must otherwise affirm the judgment. In such case, it must either reduce the total sentence to that imposed by the criminal court upon the counts with respect to which the judgment is affirmed or remit the case to the criminal court for re-sentence upon such counts; provided that nothing contained in this paragraph precludes fur- ther sentence reduction in the exercise of the appellate court's discretion pursuant to subdivision six. 4. Upon a modification of a judgment after trial which re- duces a conviction of a crime to one for a lesser included offense, page 607 § 470.20 — crimINAL PROCEDURE LAW Part 2 the court must remit the case to the criminal court with a di- rection that the latter sentence the defendant accordingly. 5. Upon a reversal or modification of a judgment after trial upon the ground that the verdict, either in its entirety or with respect to a particular count or counts, is against the weight of the trial evidence, the court must dismiss the accusatory instru ment or any reversed count. 6. Upon modifying a judgment or reversing a sentence as a matter of discretion in the interest of justice upon the ground that the sentence is unduly harsh or severe, the court must itself impose some legally authorized lesser sentence. 1.1970, ¢. 996, § 1, eff. Sept. 1, 1971. Page 608 New York Criminal Procedure Law § 470.50 Reargument of appeal; motion and criteria for 1. After its determination of an appeal taken pursuant to article four hundred fifty,’ an appellate court, in the interest of justice and for good cause shown, may in its discretion, upon mo- tion of a party adversely affected by its determination, or upon its own motion, order a reargument or reconsideration of the Page 649 § 470.50 = crimINAL procepURE LAW Part 2 appeal. Upoa such an order the court may either direct further oral argument by the parties or confine its reconsideration to re-examination of the issues as previously argued or submitted upon the appeal proper. Upon ordering a reargument or re- consideration of an appeal, the court must again determine the appeal pursuant to the provisions of this article. Pade 650 No, HON, HON, HON, HON. HON, oe“ At a Term of the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, held in Kings County on Jyne 23, 1975. FRANK A, GULOTTA, Presiding Justice SAMUEL RABIN ) JAMES D. HOPKINS ) Associate Justices M. HENRY MARTUSCELLO ) HENRY J. LATHAM ) The People of the State of New York, Decision and Order - Motion to Dispense with Printing - Appeal from Judgment Respondent, Appellant. er In the above-entitled action, the above-named appellant (defendant) having appealed to this court from a judgment of the :-*; cite Court, KINGS County, rendered JANUARY 22, 1975 and appellant having moved to dispense with printing; Now, upon the papers filed in support of the motion and papers filed in opposition or relating thereto; and the motion having been dUly submitted and due deliberation having been had thereon, it is ORDEKED that the motion is hereby granted. The appeal will be heard on the original papers (including a typewritten certified transcript of the stenographic minuti:s) and on appellant's and respondent's briefs, which may be in legibtV-D: Vhere was no evidence presented to establish the authenticity and scientific validaty of any alleyed tests cluimed by a a a ee ee ee et ee re Point XVi: The defendant was denied his constitutional rights t» uue process of law and equal pro tection of the law in that he was convicted under the consoliaated indictment upon illegal evidence and upon crimes not charged by inuict- ment and not proved, ee os £ eS €' 6. o Point XVII: whe defendant was deniecu a fair trial by the comdiuct of the trial court . . . « « 62 69 71 72 72 74 74 75 Iiwwtex (Continued) Argument (Continued) : POLGR VIII ¢ the oetendant was deprived of his Constitutional right to a fair trial by the conduct of the prosecutor . . eFOint XIX: The defendant was cueprived of his Consti- tutional right to a fair trial by the admis- Sion of illegal hearsay Cvidence and by the egregious use of illegal leading yguestions on material issues .. Polnt XX: The Jury charge deprived the defenuant of a fuie trial and was prejudicially erroneous rlint XXL: the defendant was denied his Constitutional riyht to a fair trial by the unfair and preju- Oicial selection of the jury . . . 2... Point XXII1: The defendant was denied his Constitutional right to a fair trial by the refusal of the trial court to strike out the hearsay testi- mony Of Florio and Barbarino, and to cismiss cach count of the indictment . , . . * 7. . . Conclusion: the judyment should b. reversed and the invictment dismissed ... - vi- Page to ae ae 78 . . . . 7Y . . .* > 7y . . > . 79 . — 7 7. BU ee 80 -l7a- he was the evidence insufficient to sustain the conviction of the defendant under each count of the indict- oases «= a ment respectively? Ze was the defendant denied his constitutional _—— rights to due process of law and equal protection of the laws by | the knowing use of false evidence by the prosecution? 36 Was the defendant denied his constitutional rights to a fair trial by the conduct of the trial court? 4. was the defendant denied his Constitutional rights to a fair trial by the conduct of the prosecutor? Se Was the defendant denied his constitutional rights by the unlawful search and seizure of the defendant and of his apartment on December 27, 1973? a. Was the warrantless entry of the police by force into the building where defendant resided illegal? | b. Was that warrantless entry by force into the | defendant's (1) building and (2) apartment without announcement of purpose and authority illegal? | Ce was the warrantless entry into the defendant 'p apartment illegal? d. Was the warrantless search and seizure of the! defendant and of his apartment illegal? e. Wae the warrantless arrest of the defendant illegal? f. Was the subsequent warrant issued upon prob- able cause? g. was the warrant invalid? | | he. Was the alleged warrant search and seizure | illegal? | 6. Was the defendant denied his constitutional rights! to due process of law and equal protection of the lawe being trie for “conspiracy” and “acting in concert” allegedly with Rosario ~18a- Barbarino in the absence of any such allegations and charges in the indictments? | 7. Was the defendant denied his Constitutional rights’ to due process and equal protection of the laws by the introduce | tion of illegal, hearsay evidence of “conspiracy” and “acting in| concert” as aforesaid? 8. was the defendant denied his constitutional rights to due process of law and equal protection of the laws by the | egregious allowance of illegal leading questions and hearsay to | convict the defendant? 9. Was the defendant denied his constitutional righta under the Pourteenth Amendment by the consolidaticn and amend- ment of indictments 7824/73 and 7826/73? -19a- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0473%3A1. Public record. Not legal advice.